JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following Law.

EXPLANATORY STATEMENT

I

The sustained economic development and improvement of the quality of life cannot be detached from the creation of infrastructures and the provision to the citizens of services considered essential, both of which have in the public authorities responsible for the most qualified. The role of the various public administrations must not, however, exclude in order to ensure a better response to the demands of society, the relevant role that corresponds to the civil society itself in general and, in the economic, private entrepreneur, obligated and traditional contributor of the Administration through the various formulas included in our legislation.

In the repertoire of instruments that articulate the collaboration between the public authorities and the private sector, the institution of the concession, used in the nineteenth century as a cardinal option in the great administrative and collection efforts and adapted, according to the different objectives to which it was ordered, in the sectoral legislations that emerge in the nineteenth century. Its evolutionary process has culminated, on the basis already in the European Union's own right, in the reception of public works concession in the law of contracts of public administrations. The importance, however, of the institution as an instrument at the disposal of the public authorities to dose their effort and to strengthen their capacities in parallel with their clearly contractual features, had already done the Constitution, in Article 149.1.18, it shall reserve for the exclusive competence of the State the basic legislation on concessions in conjunction with that of contracts.

The above mentioned allows to emphasize both the validity of the concession and its singular and fragmented regulation, imposed for its necessary adaptation to the differentiated objectives to which it serves in the framework of the legislation sectorial. This diversified treatment has led to obscure its concept and even to violate its substantive notes in favor of very concrete solutions to the loss, paradoxically, to the institution, victim of this desire of specialization, a great part of its ordering capacity.

As soon as it precedes, at the threshold of the twenty-first century, it seems reasonable, if not obliged-and this is the objective of the law-to recover the defining features of the centenarian figure of the concession of public works-the contribution of the private resources for the creation of infrastructures and equal pay for the entrepreneurial effort-an irreplaceable figure in the act of the public authorities, while adjusting the same to the administrative and social model of our days, that is, Once again, the institution, in accordance with its essential characteristics, is useful again in all fields in which you are called to operate.

From the point of view of the normative technique has been chosen to insert the specific regulation of this contract in the Law of Contracts of Public Administrations, recast text approved by Royal Legislative Decree 2/2000, of 16 June, following the criterion held by the State Council. In its virtue, a new Title V 'Of the contract for the award of public works', which is incorporated into the legal system of this contract, is now a typical one, taking into account the various types of administrative contracts in book II, the singularities it presents and in line with the tradition of Spanish law. The result is a harmonious and systematic title in the measure which contains a regulation of the concession which, based on the definition of the contractual figure, discipline all the life of the contract in those points where it has really been necessary their singular treatment of the general part of book I of this law.

In this way, the Law on Public Administration Contracts is enriched by the complete regulation of this contract, the generalized use of which by public administrations demanded a legal regime. singularized, taking into account its special characteristics, within the code of procurement rules that constitutes this law.

The new regulation of the concession contract for public works contained in this law is therefore, in principle, a backbone or a horizontal one, as a basic legislation, for the most part, to be enforced for all Administrations wishing to use it. The sectoral or regional regulations shall therefore acquire a complementary nature except where the legislator himself establishes the derogation by way of a single exception. The rule thus establishes the regulatory regime of the concession, which the State considers in principle to be indispensable, so that the institution fulfils the new role that society claims, that is, its contribution to the financing and creation of infrastructure and, consequently, the fastest economic growth.

Consequently, with the provision to the day of the concessional institution, the financing and construction of the public works would be substantially implemented through some of the following modalities:

(a) Construction by means of an administrative contract of works, as provided for in Title I of book II of the Law on Public Administrations, with the financing of one or more public administrations on the basis of the purpose of the works and, possibly, aid from European Union funds.

(b) Construction by means of an administrative contract of work in the form of full payment of the price, i.e. with prior financing of the contractor and deferred payment by the Administration, in accordance with the established in Article 147 of Law 13/1996 of 30 December 1996 on fiscal, administrative and social order measures.

c) Construction and exploitation of the public works under concession, conferring the main role, under the supervision and control of the Administration, to the private initiative and capital, option is in which the variety of the concession contract which incorporates the additional obligation for the concessionaire to construct a work or distinct works from which it is the subject of a concession, but linked to it.

The modality referred to in paragraph (c) is the one that is regulated in this law, whose inspiring principles and content are set out below.

II

Four fundamental concepts or notes characterize the figure of the concession, as this law conceives it, concepts that constitute the core of it, printing it character, and whose content or meaning should be specified for a better understanding of the rule. These are the "public works", "concessional risk", "economic balance of the concession" and "diversification of funding", concepts discussed below.

The regulation of the works contract identifies these (Article 120 of the Law on Public Administrations Contracts) more as an activity than as a result, hence the plural used in the name of the contract, although the "public works", strictly speaking, should be understood as a synonym of real estate of public interest created by the activity of the concessionaire that carries out the project approved by the Administration. In the new regulation of the contract for the concession of public works, the public works, as tangible reality that admits the possibility of its economic exploitation, constitutes the main factor to define its object, factor to which the interest will be joined. that the construction of the work should merit the granting authority. At this point, it should also be specified that the work is capable of enabling the contract when it is capable of being an instrumental support for the execution of various public interest activities and services, including the which may be detached from its own nature where the general use or use is intended.

It is important that the concession of the public works preserve its identity and can be recognized as such that the concessionaire assumes the risk of its construction, conservation and exploitation. Clearly, in a long-term contract by nature, the assumption of risk, given the impossibility of predicting with a reasonable margin of error the future, cannot transform the contract into a random business so that it is consistent It is necessary to adequately moderate the limits of risk, if the participation of private capital and initiative is to be attracted in investments, the volume of which requires the shared effort of the public and private sectors. It should be noted, however, that the assumption of risk in a "substantial proportion" by the concessionaire is decisive for the concession contract to merit such a rating. The law thus responds, unambiguously, to the requirements of the European Commission's doctrine and conclusions, as set out in its interpretative Communication 2000 /C 121/02, published in the Official Journal of the European Community of 29 April 2000. This doctrine of risk therefore informs the regulation that the law makes of the concession of public works.

The third key note is the attention given to the meaning and effects of the principle of economic equilibrium of the concession. The tradition of our positive right, perhaps we should speak with greater ownership of numerous specifications, has, in some cases, enshrined in some cases an interpretation of the principle always favourable to the concessionaire, until even if the risk of the same disappeared at times. In order to preserve its nature, the contractual economic balance must be restored-when it is altered by the established causes which the law establishes-the defined and agreed framework between the administration and the contractor, a compulsory reference to determine the risks and benefits of the concessionaire. The balance must be restored, whether it has been broken to the detriment of the concessionaire, producing effects beyond what is considered desirable or tolerable for the credibility of the institution and for the public interest, without This will eliminate the interest of the concessionaire.

In the previous line an increase in the demand for the use of the work of an extraordinary nature, beyond the forecasts of the concessional economic-financial plan, must be based on the appropriate adjustments for to prevent the user, who ultimately corresponds to the total or partial financing of the investment made and the payment of the exploitation of the work, to support a disproportionate toll or charge, with a manifest bankruptcy of the equity. To this end, under the terms of the new Article 233.1 (d) of the Law on Public Administration Contracts, the concessionaire is contractually committed, on the basis of its own offer, at a minimum and other level. maximum returns for each concession, so that, if the first is not reached or the second is exceeded during the period that is determined in each case, the revision of the contract will proceed. In its virtue, the terms of revision of the contract are incorporated into the contract itself by the variations that occur in the yields derived from the use of the work (Article 248.2.c). This ensures, at the same time, the fair remuneration of the business effort and risk and the user's reasonable sacrifice of the public works. In short, this interpretation of the economic equilibrium of the contract is one of the capital options that inspire the new regulation of the concession of public works, in tune with the nature and purpose of the institution and the weighted risk distribution.

The characteristics of the concessional institution are complemented by the diversification of sources of financing, in order to make it more attractive for private capital, introducing a regulatory regime called to prevent the freezing of the investment to be made. Thus, the concession, as a legal asset, will be fully integrated in the commercial traffic from the moment of the perfection of the contract, being able to be transferred and mortgage. In order to allow for the diversification of the investment effort, the law facilitates the opening of the concessionaire to the capital market, not only, logically through the conventional means, i.e. the financing by the credit or the issuance of bonds, bonds or other similar securities, even with the possibility of having the public guarantee if the general interest so advises, but through the securitisation of the credit rights attached to the exploitation of the work, a securitisation which may, where appropriate, refer to those corresponding to the areas complementary to the granting of a commercial character. The presence of private equity is ensured through a strong repertoire of guarantees for potential mortgage creditors and holders of securities.

III

The law is composed of a single article in which the Law of Contracts of Public Administrations is amended to accommodate the new regulation of the contract of concession of public works, 12 additional provisions, 1 Repeal provision and 5 final provisions.

The sole article begins with the modification of article 5.2.a) of the Law of Contracts of Public Administrations to give entry to the contract of concession of public works in the enumeration of the typical contracts contained in that Article, which is supplemented by Article 7, which refers to the legal status of such contracts, in which the order of precedence of sources is defined in accordance with the specialties of this contract.

Paragraph 3 gives a new wording to Section 2 of Chapter I of Title I of Book II, introducing the mode of financing of a public work by means of a public domain concession. The new Article 130 is therefore a new figure of a mixed character, under which the consideration of the administration for the construction and maintenance, or only for the maintenance, of the work would consist in the granting of a the granting of public domain in the area of services or in the area of influence in which it is integrated. It is not a concession of public works in accordance with the provisions of this law, since it is part of the premise that the work is not susceptible to economic exploitation, so it has been chosen for its inclusion in Title I of book II of the Law of Contracts of general government, relating to the contract of works. However, it is incorporated into this law in accordance with its coincident purpose with the contract of concession of public works to contribute to the financing of these without necessarily resorting to the budget of the different public administrations.

Article 157 (a) is amended in paragraph 4 in order to approve the duration referred to in the case of contracts which include the execution of works and the operation of services where it is a market or a wholesale central item of goods (a) food managed by companies in the municipal mixed economy to the maximum duration of contracts for the award of public works in the light of the difficulties faced by such contracts in order to maintain the economic balance of their holdings.

In paragraph 5 the nuclear part of the law is contained, as it introduces the new title V in book II, called "The contract of concession of public works". This title consists of five chapters: Chapter I. General provisions; Chapter II. Of the construction of the public works to be granted; Chapter III. Rights and obligations of the concessionaire and prerogatives of the contracting authority; Chapter IV. Private financing; Chapter V. Extinction of concessions.

Chapter I, 'General provisions' (Articles 220 to 226) begins with the definition of the contract for the award of public works in accordance with the above (Article 220), and the content of the contract is specified below. (Article 221) and providing for the possibility that the initiative of the public works to be granted may correspond to a particular one (Article 222).

Two precepts of this chapter are of particular significance, such as those relating to the complementary areas of commercial exploitation (Article 223), a space called to play in certain concessions a relevant role, not only with regard to the functionality of the same but also to the impact of its exploitation on the whole of the economic-financial plan of the concession itself, and the one that establishes the framework of financing of the public works that is build by a concession contract (Article 224). Article 225 establishes, for its part, the model of remuneration of the concessionaire by means of the payment, by the user of the work or by the granting authorities themselves, of a price or a licence fee, as well as any public aid which may be granted receive the concessionaire, to which it will be the responsibility, in any case, to assume the risk according to the investment made.

This Chapter I is closed with Article 226 in which it is regulated, the possible financing, with total or partial charge to the corresponding operating fees, of a differentiated public work from which it is object of concession but with which you save a certain functional relationship.

Chapter II, 'The construction of the works to be granted' (Articles 227 to 241), regulates the previous actions to define the work and the future concession contract (Articles 227 to 234), starting the process of feasibility study until the end of the relevant specification of the particular administrative clauses in which the content of the concession in question will be specified. In the chapter, the procedure for the selection of the concessionaire (Article 235) is then regulated, always ensuring that the principles of advertising, transparency, equality and non-discrimination are applied, since the system refers to the established in the Law on Contracts of Public Administrations. Finally, the chapter refers to the stage of execution of the works (Articles 236 to 241), a stage which is developed in the same way as the regulation for the contract of works, while respecting the peculiarities of the concession in which, logically, the works will be in most cases executed by third parties.

Chapter III, "Rights and obligations of the concessionaire and prerogatives of the granting authority" (Articles 242 to 252) constitutes a nuclear chapter as regards the legal status of the concession. Articles 242 and 243 list the repertoire of rights and obligations of the concessionaire, having chosen the law to submit the acts of provision of the concession by the holder to the prior control of the Administration, in order to assure the continuity of the exploitation of the work. As regards the use and conservation of public works (Article 244), and for their guarantee, certain powers in the field of police are conferred on the concessionaire in the framework of their obligations.

This chapter also includes the regulation of the economic-financial system of the concession. Article 245 differentiates the different types of public contributions which may be used, depending on the case, to the construction of the work, as well as the stages in which these contributions may be made. For its part, Article 247 identifies the contributions, also public, which the concessionaire can receive at the operating stage to ensure the economic viability of the concession. The remuneration for the use of the work, which is based on the tariff model, without prejudice to the fact that the fees are paid, as appropriate for the public interest and determined in the documents, by the user or the administration, total or partially, is subject to regulation in Article 246, which also provides for the cases in which the revision of the tariffs will proceed.

Article 248 identifies the assumptions on which the economic balance of the contract will be restored and provides for the measures to be taken, reconciling the interest of the concessionaire with the public interest through the possibility, (a) to agree both the modification of the tariffs and the operating conditions of the work, including the reduction or extension of the concession period which may in no case exceed the maximum provided for by the law. In relation to the assumptions in which the restoration of economic equilibrium will proceed, the precept determines the concept of substantial rupture of the concession economy by referring it to the expected profitability for this.

Finally, this Chapter III regulates the prerogatives and rights of the Administration which, in addition to the conventional or the concession, include the temporary imposition of the conditions for the use of the work to deal with exceptional situations (Article 249), the modification of the public works itself to be granted (Article 250), the abduction of the concession, in the cases and with the effects provided for in the rule (Article 251), as well as the system of penalties for non-compliance by the concessionaire of its obligations (Article 252).

Chapter IV, "Private financing" (Articles 253 to 260) refers to the arrangements for private financing of which the concession may benefit, regulating the issuance of bonds and other securities, as well as the incorporation into Negotiable securities of the credit rights of the concessionaire and the protection of the rights of the holders (Articles 253 and 254), the mortgage of the concession (Articles 255 to 257), including the rights that assist the mortgage creditor and the the procedure for the implementation of the mortgage (Article 257) and the rights of charge holders Article 259 of the Treaty provides for the possibility of recourse, as a source of financing, to participative appropriations by setting up the system of the granting of a concession for the granting of a concession in the case of a concessional resolution (Article 258). legal. Finally, the 260 regulates the court's jurisdiction to know the contentious issues raised by the application of the precepts contained in this chapter.

Chapter V, "Extinction of concessions" (Articles 261 to 266) regulates the cases of extinction of the concession, which will take place either by the deadline or by resolution (Article 261). the termination of the concession in the course of the period (Article 262), the maximum duration of which is laid down in Article 263, differentiating the infrastructure concessions in the case of concessions for the construction and operation of public works (40 years) or for the holding of the same (20 years). The possibility of extension is limited to a maximum of 60 and 25 years, respectively, in exceptional cases, also providing for the rule the prerogative of the Administration to reduce the concession period in the alleged contents in the own law. On the other hand, the causes of the resolution (Article 264) are foreseen, adding to those which are peculiar to the general administrative contracting regime, the peculiar or the concession. Articles 265 and 266 concretize the application of the causes of resolution and the effects of resolution.

The law includes, as stated, twelve additional provisions, another repeal and several final provisions. First, and following the provision on the planning of public works, the second and third provisions contain the necessary details to ensure at all times the mutual cooperation of the authorities. public in the field and, without prejudice to the application of the principles and modalities already regulated in our order (Title I of Law 30/1992, of 26 November, of the Legal Regime of the Public Administrations and of the Administrative Procedure In the case of the Court of Justice, the Court held that the Court of Justice Constitutional, handed down on the occasion of the analysis of the extent of the State competence on specific public works of general interest and their articulation with the exercise of the other concurrent powers.

The rest of the additional provisions relate to the assessment of the environmental impact of the works to be granted (additional provision fourth), they introduce the mandatory and binding report of the Ministry of Defence in the Where the construction of the works could have an impact on protection zones affected by the national defence (fifth additional provision), they provide for the declaration of public utility of the works covered by a concession contract (provision (sixth), they regulate the procedure and the allocation of powers in the field of (a) the granting of aid to the State in which the aid is granted to the State in which the aid is granted to the State in which it is granted, and which is not subject to the conditions laid down in the Treaty. approval of the technical regulations to facilitate the electronic charging of tolls by motorway dealers (additional provision novena). Finally, the law introduces certain specialities to accommodate the sectoral rules on costs and public works of water to the new law (additional provisions tenth and eleventh), as well as to determine the extent of the law in question. Relationship with the energy sector infrastructure (additional provision twelfth).

The only derogation provision, in addition to introducing a general derogation clause, specifies the articles of the Law on Public Administration Contracts, the Law on the Construction, Conservation and Exploitation of highways under concession and those relating to concessions of the General Law of Public Works of 13 April 1877 which are also repealed.

The final first provision gives concrete evidence of the state's competence to dictate the law and the character of the various precepts of the law. In this sense, most of its articles are classified as basic state legislation, dictated under the exclusive competence of the State in matters of basic legislation on contracts and administrative concessions recognized in the Article 149.1.18. of the Constitution. Following the constitutional jurisprudence, a careful elaboration has been made of what constitutes the common normative denominator that ensures the existence of a minimum uniform regulation throughout Spain, according to the identifying notes of this legal figure set out above.

The rest of the articles, as they are broken down in the final provision, are either applicable only to the concessions granted by the State, or it is fully implemented by virtue of other competitive titles. concurrent state of Article 149.1, such as "Defence and Armed Forces" (4), "commercial law" (6), "civil law" (8), "bases and coordination of general economic activity planning" (13), " general finance and State debt "(14.) and" Public works of general interest " (24.).

The rest of the final provisions, they point out the basic character of the implementing rules (final provision second) specify the precepts that will apply to all concessions (final disposition third), authorize the Council of Ministers to dictate the necessary provisions in the development of the law (fourth final provision) and set the date of entry into force of the law (final disposition fifth).

Single Article. Modification of the Law on Contracts of Public Administrations, recast text approved by the Royal Legislative Decree 2/2000, of June 16.

One. Paragraph 2 (a) of Article 5 (2) of the Law on Public Administrations Contracts is amended to read as follows:

" (a) Those whose direct object, jointly or separately, is the execution of works, the management of public services and the performance of supplies, the granting of public works, consulting and assistance, or services, except for contracts falling within category 6 of Article 206 concerning insurance and banking and investment contracts, of those falling within category 26 of the same Article, contracts having as their object the creation and artistic and literary interpretation and those of shows. "

Two. Article 7 of the Law on Contracts of Public Administrations is amended, which happens to have the following wording:

" Article 7. Legal regime for administrative contracts.

1. Administrative contracts, with the exception laid down in the following paragraph, shall be governed in respect of their preparation, allocation, effects and extinction by this law and its implementing provisions; they shall apply the remaining provisions. rules of administrative law and, failing that, the rules of private law. However, special administrative contracts, as defined in Article 5.2 (b), shall be governed by their own rules on a preferential basis.

2. The contract for the award of public works shall be governed, in accordance with the provisions of the preceding paragraph, by the provisions contained in Title V of book II of this Law, its implementing provisions and by sectoral legislation. specifies as soon as it does not object to that title, without prejudice to Articles 125 and 133 to 135 of the recast text of the Water Act, approved by Royal Legislative Decree 1/2001 of 20 July.

3. The judicial-administrative court shall have jurisdiction to resolve disputes arising between the parties to administrative contracts. '

Three. The name and content of Section 2. of Chapter I of Title I of book II of the Law on Public Administrations Contracts, which is amended as follows:

" Section 2. Funding of public works by public domain concession

Article 130. Legal regime.

The provisions of this section will only be applicable to cases where a public work, by its nature and its characteristics, is not susceptible to economic exploitation and is therefore the subject of the contract of the granting of public works regulated in Title V of this book.

Article 131. Requirements.

In the cases referred to in the preceding article, the construction and preservation of the public works, or only the preservation thereof, may be the subject of the corresponding contract of execution and maintenance, or only of maintenance, of public works, being able to grant as consideration the competent authority for the reason of the matter, according to the specific legislation of the same, a concession of public domain in the area of services or in the area of influence on which the work is integrated.

Article 132. Specifications for particular administrative clauses.

In the corresponding specification of particular administrative clauses the use and destination as well as the characteristics of the intended exploitation for the goods of public domain object of the concession will be determined.

Article 133. Selection criteria.

To select the contractor and dealer the contracting authority will jointly value the offer related to the construction and maintenance of the work, or on its project, execution and maintenance, or only on its maintenance, as well as the works or actions which the tenderer intends to carry out on the public domain and the operating system it provides for the public domain.

Article 134. Arrangements for the use of public domain goods.

A public domain concession cannot be granted as a result of the contract regulated in this section in violation of the regime of use of the public domain goods regulated in the specific laws. "

Four. Articles 156 and 157 of the Law on Public Administration Contracts are amended as follows:

1. Paragraph (a) of Article 156 shall be worded as follows:

"(a) Concession, whereby the employer shall manage the service at his own risk and venture, where the provisions of Article 232 (1) and (3) of this Law apply in this case."

2. Paragraph (a) of Article 157 shall be worded as follows:

" (a) Fifty years in contracts comprising the execution of works and the holding of public service, unless the latter is a market or a wholesale central auction of food items managed by an economy company mixed municipal, in which case it may be up to 60 years. "

Five. A new Title V is added to book II of the Law on Public Administrations Contracts, with the following content:

" TITLE V

From the public works concession contract

CHAPTER I

General provisions

Article 220. Contract for the award of public works.

1. A contract for the award of public works is understood to be the one in which the public administration or entity governed by public law grants to a concessionaire, for a period of time, the construction and exploitation, or only the holding, of works related to Article 120 or, in general, to those which are susceptible to exploitation, are necessary for the provision of public services of an economic nature or for the development of economic activities or services of interest (a) the right to receive a remuneration consisting of the exploitation of the work itself, in that right accompanied by a charge or in any other form set out in this title.

2. The construction and operation of the public works to be granted shall be carried out at the risk and sale of the concessionaire, who shall bear the economic risks arising from his execution and exploitation on the terms and with the scope laid down by this law, which will in any case be compatible with the various systems of financing of the works which are regulated in it and with the contributions to which the granting authority may be required.

3. The granting authority may provide that the concessionaire shall draw up the project for the construction of the works in accordance with the requirements laid down in the relevant study or preliminary draft, in accordance with the terms set out in Chapter II. In this case, the approval of the project shall be the grant of the grant and shall form part of the concession contract.

4. The system of financing of the work and the remuneration of the concessionaire shall be determined by the Administration with respect to the objectives of budgetary stability and on the basis of criteria of rationalisation in the investment of the resources. economic, to the nature of the works and to the significance of these for the public interest.

5. The scheme of the public works concession contract provided for in this Title shall apply to all entities governed by public law, irrespective of their legal status as regards procurement and denomination.

Article 221. Content of the contract for the award of public works.

1. The contract for the award of public works shall necessarily cover the entire term of the concession:

(a) The exploitation of public works according to their own nature and purpose.

b) The preservation of the works.

c) The adequacy, reform and modernization of the works to adapt them to the technical and functional characteristics required for the correct delivery of the services or the realization of the economic activities to which those serve as material support.

(d) the replacement and major repair actions that are required in relation to the elements to be collected by each of the works to be kept fit so that the services and activities to which they serve can be be properly developed according to economic demands and social demands.

2. Where the contract is jointly designed to build and operate public works, the general or private specifications governing the concession may require the concession holder to be equally obliged to project, carry out, to preserve, replenish and repair works which are ancillary or are linked to the principal and are necessary for the purpose of the construction to fulfil the determining purpose of its construction and to enable it to operate and operate, as well as carry out the environmental actions related to the actions to be provided for.

In the event that the contract has for the sole purpose the exploitation of works already constructed, the concessionaire will also be obliged to the conservation, repair or replacement of the works by-works or linked to the work main, if the specification of the particular administrative clauses of the concession does not have anything else.

3. In the event that such linked or ancillary works may be the subject of economic exploitation or exploitation, they shall correspond to the concessionaire in conjunction with the operation of the main work, in the form determined by the specifications. respective.

Article 222. Contracts for the award of public works at the request of individuals or other public administrations.

Regardless of the initiative of the competent administration to tender for possible concessions, the procedure may be initiated at the request of natural or legal persons or other administrations that intend to to build and exploit a work of the regulated in this law, provided that the applicant, in addition to the general requirements laid down therein, accompanies his request for the relevant feasibility study provided for in Article 227 with the content provided for in paragraph 2 of that Article. This application shall initiate the procedure laid down in that Article.

Article 223. Complementary areas of commercial exploitation.

1. Public works may include, in addition to areas which are precise according to their nature, other areas or areas for the implementation of complementary, commercial or industrial activities which are necessary or suitable for the use which they provide to the users of the works and which are susceptible to a differentiated economic advantage, such as hotels, service stations, leisure zones, parking lots, local commercial and other susceptible of exploitation.

These complementary activities shall be implemented in accordance with the provisions of the general or particular documents governing the granting and, where appropriate, with the provisions of the legislation or urban planning which is applicable.

The corresponding zones or spaces will be subject to the principle of management and control unit of the public administration and will be exploited jointly with the work by the concessionaire directly or through third parties in the terms set out in the appropriate concession specifications.

2. The goods and facilities included in the area of complementary activities of the work granted shall be delivered to the contracting authority at the end of the concession in the form laid down in this law.

Article 224. Financing of public works constructed by concession contract.

1. The public works to be awarded shall be financed, in whole or in part, by the concessionaire which, in any event, will assume the risk on the basis of the investment made.

2. The concessionaire may use private financing to meet its contractual obligations under the terms and conditions set out in this law.

In addition to the means provided for in Chapter IV of this Title, financing may be obtained through the hiring of loans or credits with credit institutions in accordance with the current legal order. Such contracts shall be communicated to the contracting authority within one month of their subscription.

The concessionaire may also use other means of private financing after authorisation of the contracting authority.

3. Where there are reasons for economic or social profitability, or there are special requirements arising from the public interest or general interest of the work to be granted, the Administration may also provide public resources for its financing, which take the form of joint financing of the work, by means of cash or non-cash contributions, grants or reintegrable loans, with or without interest, or participative loans in accordance with Article 236 and in the section 2. of Chapter III of this Law and in accordance with the provisions of the corresponding (i) the principle of risk-taking by the concessionaire must be respected in any case, and the principle of risk-taking must be respected.

4. The construction of the public works to be granted may also be financed by contributions from other public administrations other than the grantor, in the terms contained in the relevant convention, and with the financing provided by the may come from other national or international bodies.

Article 225. Remuneration of the concessionaire.

The concessionaire shall be paid directly by the price paid by the user or the Administration for the use of the work, by the income from the exploitation of the commercial zone and, where appropriate, by the contributions from the Administration itself in accordance with the provisions of this law, the principle of risk taking by the concessionaire being respected.

Article 226. The granting of public works and the construction of differentiated public works.

1. Where two or more public works maintain a functional relationship between them, the contract for the award of public works does not lose its nature by the fact that the use of part of the works constructed is not subject to remuneration that the party is also competent for the granting and abetting administration of the concession.

2. The corresponding specification of specific administrative clauses shall clearly specify the aspects concerning the work to be granted, as determined by this law, distinguishing, for these purposes, the part of the remuneration of the that which is not.

Bidders must present the corresponding economic-financial plan that includes both parts of the works.

3. In any case, the total amount of the works carried out shall be taken into account in determining the rates to be applied for the use of the work to be granted.

CHAPTER II

Of the construction of the works object of concession

Section 1. Previous Updatings

Article 227. Feasibility study.

1. Prior to the decision to construct and operate a public work, the appropriate organ of the granting authority shall agree to carry out a feasibility study of the same.

2. The feasibility study shall contain at least the data, analyses, reports or studies that proceed on the following points:

a) Purpose and justification of the work, as well as definition of its essential characteristics.

b) Forecasts on the demand for the use and economic and social impact of the work in its area of influence and on the profitability of the concession.

c) Assessment of existing data and reports that refer to sectoral, territorial or urban planning.

d) Study of environmental impact where this is mandatory in accordance with current legislation. In the remaining cases, an environmental analysis of the alternatives and the appropriate corrective and protective measures.

e) Justification of the chosen solution, indicating, among the alternatives considered whether it will be road or linear infrastructures, the characteristics of their layout.

f) Operational and technological risks in the construction and exploitation of the work.

g) Cost of the investment to be made, as well as the proposed financing system for the construction of the work with the justification, likewise, of the origin of the work.

3. The granting authority shall submit the feasibility study to public information for a period of one month, which may be extended for the same period of time by reason of its complexity and shall transfer it to the bodies of the administration. General of the State, the Autonomous Communities and local corporations affected when the work is not included in the corresponding urban planning that must be issued within one month.

4. The processing of public information provided for in the previous paragraph will also be used to fill in the environmental impact study, in cases where the environmental impact statement is mandatory.

5. The private initiative will be accepted in the presentation of feasibility studies of eventual concessions. The study shall be submitted to the competent body so that, within three months, it shall communicate to the individual the decision whether or not to deal with it or set a longer period for its study which, in no case, shall be longer than six months. The silence of the Administration or the appropriate entity shall be equivalent to the non-acceptance of the study.

In the case that the feasibility study will culminate in the granting of the corresponding concession after the corresponding invitation to tender, its author will be entitled, provided that he has not been successful and unless the The study would have been insufficient according to its own purpose, to compensate for the expenditure incurred for its preparation, increased by 10% as compensation, expenditure which may be imposed on the concessionaire as a condition Contract in the relevant specifications of particular administrative clauses. The amount of the expenditure shall be determined by the granting authority on the basis of those accredited by the person who submitted the study, in accordance with the nature and content of the study and in accordance with market prices.

6. The granting authority may, in particular, agree to the replacement of the feasibility study referred to in the preceding paragraphs by a study of economic and financial viability where the nature and purpose of the work or the The amount of the investment required shall be deemed to be sufficient. In these cases, the Administration shall, in addition, prepare the relevant preliminary draft or draft to ensure the formalities laid down in Article 228 (3) and (4) before tender.

Article 228. Preliminary draft construction and exploitation of the work.

1. Depending on the complexity of the work and the degree of definition of its characteristics, the granting authority, approved the feasibility study, may agree to the drafting of the corresponding preliminary draft. This may include, in accordance with the nature of the work, complementary areas of commercial exploitation.

2. The preliminary draft construction and operation of the work shall contain at least the following documentation:

(a) A memory in which the needs to be met, the social, technical, economic, environmental and administrative factors considered to meet the objective set and the justification of the solution that will be exposed is proposed. The memory will be accompanied by the corresponding basic data and calculations.

b) The general and set situation plans required for the definition of the work.

c) A budget that includes the costs of execution of the work, including the cost of the expropriations to be carried out, based on the corresponding measurements and assessments.

(d) A study on the use and exploitation of the work, indicating its form of financing and the tariff regime governing the concession, including, where appropriate, the incidence or contribution of the work in question. the yields that may correspond to the commercial operating area.

3. The preliminary draft shall be submitted to the public for a period of one month, which may be extended for the same period of time by reason of its complexity, so that any comments may be made on the location and characteristics of the work, as well as any other circumstance concerning its declaration of public utility, and will give transfer of this to report to the organs of the General Administration of the State, the autonomous communities and local corporations affected. This process of public information will also be used to fill in the environmental impact study, in cases where the environmental impact statement is mandatory and no such procedure has been carried out previously. be an assumption included in paragraph 6 of the previous Article.

4. The grantor administration shall approve the preliminary draft of the work, taking into account the arguments put forward and incorporating the requirements of the environmental impact declaration, and shall require the public utility to be recognised in particular. effects provided for in the compulsory expropriation legislation.

5. Where the specification of the particular administrative clauses so permits, and in the terms established by it, the tenderers to the concession may introduce in the preliminary draft the improvements they deem appropriate.

Article 229. Project of the work and repose of it.

1. In the event that the works are defined in all their characteristics by the grantor administration, the drafting, supervision, approval and review of the corresponding project will be carried out in accordance with the provisions of the corresponding articles of this law and the recognition of the public utility of the work for the purposes provided for in the legislation of compulsory expropriation.

2. Where there is no preliminary draft, the administration shall submit the draft, before final approval, to the procedure laid down in Article 228 (3) and (4) for the preliminary draft.

3. It shall apply in respect of the possible improvements to the project of the work referred to in Article 228 (5).

4. In the case of concessions for the conservation and exploitation of public works, the projects of the works to be carried out by the concessionaire shall also be adjusted, in respect of their requirements, content, supervision and repose, to the provisions of the works contract in this law.

5. The concessionaire shall be liable for damages arising from the defects of the project where, according to the terms of the concession, it corresponds to its presentation or has introduced improvements in the one proposed by the Administration. The liability shall also be extended to damage due to defects in the projects for the conservation and exploitation of the public works referred to in the previous paragraph.

Article 230. Specifications of particular administrative clauses.

1. The specifications of particular administrative clauses in public works concession contracts shall at least refer to the following aspects and to those contained in Article 232.1 of this Law:

(a) Definition of the subject-matter of the contract, with reference to the preliminary draft or draft concerned and express reference to the documents of the latter which are of a contractual nature. Where applicable, determination of the complementary area of commercial exploitation.

(b) Procedure and manner of award of the contract, criteria for the selection of the successful tenderer and identification of the contracting authority.

(c) Requirements of financial, economic and technical capacity and solvency that are payable to tenderers. For these purposes, in the case where the dominant legal persons of a group of companies are lawful, the companies belonging to the group may be taken into account as long as those companies prove that they actually have the free and full availability of the necessary means of the companies of the group for the performance of the contract.

d) Content of the proposals, which shall include the provisions of Article 233 of this Law.

(e) the concessionaire's remuneration system in which the options on which the offer is to be made shall be included, as well as, where appropriate, the price review formulas during the execution of the works and cost update during its operation, all with a reference to its impact on the corresponding tariffs according to the purpose of the concession.

(f) The minimum threshold for profits arising from the operation of the commercial area below which the economic elements of the concession may not be affected.

g) Economic and financial benefits which may be recognised for the purpose of the contract for the award of public works, as well as any real estate or other contributions which may be made by the Administration or entity or other public administrations.

h) The guarantee and form of provisional and final guarantees.

i) Special characteristics, if any, of the concessionary company.

(j) Deadline, where appropriate, for the preparation of the project, the time limit for the execution of the works and the period of operation of the works, which may be fixed or variable according to the criteria laid down in the specification.

k) Specific rights and obligations of the parties during the execution phase of the works and during their operation.

l) Regime of penalties and assumptions that may result in the abduction of the concession.

m) Expresses submission to the provisions of this law.

n) Place, date and time period for submission of tenders.

2. The contracting authority may include in the contract documents, depending on the nature and complexity of the contract, a period for tenderers to be able to request the clarifications they consider relevant to their content. The responses will be binding and should be made public in terms of ensuring equality and competition in the tender process.

Article 231. Call for tender.

1. The contracting authority shall, prior to the invitation to tender, verify that all the preparatory procedures have been completed and approve the relevant procurement file which shall be implied by the contract specification. (a) The opening of the award procedure shall be agreed in the same resolution by means of the invitation to tender for the contract.

2. The call must be published according to the corresponding officially approved model of advertisement and in accordance with the rules of advertising of the works contracts, with the speciality that in the restricted procedure the period for the submission of applications may not be less than 52 days from the date of dispatch of the notice.

3. Irrespective of the information contained in the notice of call, the contracting authority shall make available to interested parties, for consultation, the additional information which shall cover at least the following aspects:

(a) The public works subject to the contract, specifying their characteristics and their operating system.

b) Procedure and manner of award of the contract and the criteria for the selection of the concessionaire.

(c) List of documents to be provided by the contracting authority at the tender stage. This documentation shall include the feasibility study or, where appropriate, the economic-financial feasibility study, the project or the preliminary draft of the works and the specification of particular administrative clauses to which the concession shall be subject, with specification, if intended, of the complementary area of commercial exploitation and the object of the commercial exploitation zone.

d) The requirements to be met by the tenderers, as well as the potential partners that will integrate the concession company into the future. The possible transferee of the concession shall comply with the specific conditions laid down in the specifications according to the degree of development of the concession business at the time of the transfer.

e) The ends to be understood by the proposition and the documents that will accompany it.

f) The required guarantee scheme.

(g) Form, place and time limit for the submission of applications, which may not be less than 52 days from the date of dispatch of the notice to the Office for Official Publications of the European Communities where the publication in the Official Journal of the European Communities is required.

4. In the open procedure, the contracting authority shall provide interested parties with a request for the specification of the particular administrative clauses referred to in the previous Article. In the restricted or negotiated procedure such specifications shall be provided to the successful candidates.

Article 232. Requirements for tenderers.

1. Tenderers may be tenderers who fulfil the requirements of economic, financial and technical capacity and solvency in accordance with Articles 15, 16 and 19 of this Law and are not subject to the prohibition on hiring out referred to in Article 20. The specification of administrative clauses shall specify the means to prove technical, economic and financial solvency, in accordance with the nature and purpose of the concession.

2. In order to participate in the invitation to tender, it shall be necessary to provide a provisional guarantee in the amount laid down in the specification of particular administrative clauses which may not be less than 2% of the estimated investment budget.

3. Those who participate individually or jointly with others to the invitation to tender for a public works concession may do so with the commitment to constitute a company which shall be the holder of the concession. The constitution and, where appropriate, the form of the company must comply with what it establishes, for certain types of concessions, the corresponding specific legislation.

Article 233. Content of the propositions.

1. The proposals of the tenderers shall be based on the points required in the specification of particular administrative clauses which shall be at least the following in the case of concessions for the construction and exploitation of public works:

(a) The relationship of promoters of the future concessionary company, in the event that its constitution is envisaged, and features of the same legal as well as financial.

(b) Plan to carry out the works with an indication of the intended dates for their commencement, completion and opening to the intended use.

c) Term of duration of the concession.

(d) the economic and financial plan of the concession which shall include, among the aspects relating to it, the system of tariffs, investment and operating costs and payment obligations and financial, direct or indirect expenditure, estimates. The impact on tariffs, as well as on the depreciation forecasts, on the concession period and on other variables of the concession provided for in the specification, if any, of the returns on the demand for the product, should be considered. the use of the work and, where it exists, the profits derived from the operation of the commercial area, where they do not reach or when they exceed the minimum and maximum levels, respectively, that are considered in the offer. In any event, if the returns in the commercial area do not exceed the minimum threshold set out in the specification of administrative clauses, those returns may not be considered for the purposes of the review of the above elements.

e) In cases of mixed financing of the work, proposal of the percentage of financing from public resources, below those set out in the specification of particular administrative clauses.

(f) The commitment that the concessionary company will adopt the accounting model established by the contract, in accordance with the applicable rules, including that which may correspond to the management of the additional areas of commercial exploitation, without prejudice to the fact that the yields of these are integrated into all the effects of the concession.

2. In the case of contracts intended to be granted for the exploitation of the public works already constructed, the content of the proposals shall be adapted by the specification of the specific administrative clauses to the specific object of the contract.

3. In the terms and with the scope to be fixed in the contract, tenderers may make improvements which they consider appropriate and which may relate to structural characteristics of the work, their operating system, the measures taken to avoid damage to the environment and natural resources, or to substantial improvements, but not to its location.

Article 234. Related companies and regime of proposals.

1. It is understood by related undertakings in which the concessionaire may exercise, directly or indirectly, a dominant influence or those which may be exercised over him or which, in the same way as the dealer, are subject to the the dominant influence of another undertaking on the basis of ownership, financial participation or rules governing it.

2. It shall be presumed that there is a dominant influence when a company, directly or indirectly, in relation to another:

a) Be in possession of the majority of the subscribed capital.

b) Dispose of the majority of the votes inherent in the shares issued by the company.

(c) You may designate more than half of the members of the company's management, management or control body.

3. Companies submitting bids for the concession and found in the circumstances set out above should accompany those companies with an exhaustive list of the related companies.

4. The presentation of different proposals by related undertakings shall mean the exclusion of the award procedure, for all purposes, from the tenders made. However, if the link is exceeded before the time limit for the submission of tenders is concluded or the time limit for the submission of applications in the restricted procedure, the offer to be determined by common agreement may be subsisr companies.

Section 2. Contract Award

Article 235. Procedures and forms of award.

1. The award of concessions may be carried out by open or restricted procedure, always by means of a competition, or by negotiated procedure in accordance with the provisions of this law.

2. For the examination and assessment of the proposals of the tenderers, the contracting authority shall be assisted by a bureau in the cases and with the composition and powers laid down in this law.

3. The award and the formalisation of the contract shall be effected within the time limits laid down in the specification. Such time limits may not exceed six months, which may be extended for a period of not more than three months, for the award, and three months for formalisation.

Section 3. Running of the works

Article 236. Modalities of execution of the works.

1. The works shall be carried out in accordance with the project approved by the contracting authority and within the time limits laid down in the specification of particular administrative clauses, and may be implemented with the assistance of the Administration. The execution of the work corresponding to the concessionaire may be contracted in whole or in part with third parties, in accordance with the provisions of this law and the specifications of particular administrative clauses.

2. The assistance of the Administration in the construction of the work may consist of the execution on its part of the work or its partial financing. In the first case, the part of the work to be carried out must present its own characteristics that allow its differentiated treatment, and must be subject to its completion of the corresponding formal reception. If the specification of particular administrative clauses is not otherwise available, the amount of the work shall be paid in accordance with Article 145 of this Law. In the second case, the amount of the financing to be granted may be paid in the agreed terms, during the execution of the works, in accordance with Article 145 of this law, or once those have been completed, in the manner in which it is specified in Article 245 of this Law.

3. When the concessionaire is to execute the work, either directly or by hiring it in whole or in part, it shall indicate the contracting authority, providing as much documentation and details as required by the contracting authority. The contracting authority shall be responsible for monitoring the execution of the work in the terms laid down in the relevant specification of technical requirements.

Article 237. Execution of works by third parties.

1. In the contract for the award of public works, the administration may impose on the concessionaire a percentage of the works contracts covered by the concession which represent at least 30% of the total value of the works. such works, and it must be possible to increase the number of tenderers by stating their number in the contract. Alternatively, they may invite them to indicate in their tenders the minimum percentage to be subcontracted with third parties.

2. The concessionaire shall submit the contracts it holds with a third party to the advertising rules laid down in Article 135.2, except where it shall measure any of the following circumstances:

(a) The contract price is less than EUR 6,242,028, equivalent to 5,000,000 special drawing rights, excluding value added tax.

b) That the procedure used for its award is negotiated without advertising.

For the purposes of the preceding paragraph, third parties shall not be considered as those undertakings which have been grouped to obtain the concession, nor the undertakings linked to them. The concessionaire shall update the list of undertakings which meet such a condition in accordance with the changes in the relations between the undertakings concerned.

3. Article 137, 140 and 141 of this law shall also apply to the subcontracting of the works by the concessionaire, and must be accommodated in the model of the notice provided for in regulation.

4. In the case of contracts concluded by dealers, other than the administration, in the restricted procedure, the time limit for the receipt of requests for participation shall not be less than thirty-seven days and the time for the receipt of tenders from 40 days from the date of dispatch of the notice or invitation to tender, respectively.

5. Where the concessionaire is a public administration, the public authority shall be in full compliance with the provisions of this law for works to be executed by third parties.

Article 238. Responsibility for the execution of works by third parties.

1. It is for the concessionaire to monitor the execution of the works which he contracts with third parties, and the control must be adjusted to the plan which the concessionaire produces and is approved by the contracting authority. The Commission may at any time collect information on the progress of the works and turn the inspection visits it deems appropriate to them.

2. The concessionaire shall be liable to the contracting authority for the consequences arising from the execution or termination of the contracts he or she holds with third parties and which is also responsible for the same consequences.

Article 239. Principle of risk and venture in the execution of works.

1. The works shall be constructed at the risk and sale of the concessionaire, in accordance with the provisions of Articles 98 and 144 of this Law, except for that part of the work which may be executed on behalf of the Administration, as provided for in the Article 236 (2), in which case the general scheme provided for in the works contract shall apply.

2. Where the concessionaire is delayed in the execution of the work, either in the performance of the partial deadlines or the total period, and the delay is due to force majeure or due to the granting of the grant, the latter shall be entitled to a extension of the time limit for the execution of the work and, cumulatively and cumulatively, within the time limit of the concession, which shall be at least equal to the delay, unless a minor is asked to do so. If the concessionaire is responsible for the delay, the system of penalties contained in the specification of particular administrative clauses and in this law shall be subject to the provisions of the penalties, without the delay being likely to extend the period of the concession.

3. If the force majeure implies higher costs for the concessionaire in spite of the extension granted, the economic-financial plan will be adjusted. If the force majeure prevents the performance of the works, the contract shall be terminated, the contracting authority having to pay the total amount of the executed, as well as the higher costs incurred by the dealer. as a result of borrowing with third parties.

Article 240. Project modification.

1. Once the contract has been completed, the contracting authority may only make amendments to the project on grounds of public interest, provided that they are due to new needs or unforeseen causes, duly supporting it in the file. The economic and financial plan of the concession shall in any event be subject to the appropriate adjustments to the effects resulting from the increase or decrease in costs.

2. The dealer may apply for the termination of the contract when the contracting authority imposes modifications at the execution stage which increase or decrease the work by a percentage greater than 20% of the total amount of the works initially planned or represent a substantial alteration of the initial project.

Article 241. Completion of the works.

1. The completion of the works shall be carried out by the granting of a record of verification by the granting authority. The minutes of formal receipt shall be lifted at the end of the concession where the goods and facilities are delivered to the contracting authority. The lifting and the content of the test report shall be in accordance with the specifications of the individual administrative clauses and those of the minutes of receipt as laid down in Article 147 of this Law.

2. The audit report shall be accompanied by a document assessing the public works carried out and, where appropriate, a declaration of compliance with the conditions laid down in the environmental impact declaration, which shall be issued by the body of procurement and in which the investment made shall be recorded.

3. In the works financed in part by the granting authority, by means of partial credits to the concessionaire based on the monthly certifications of the work executed, the final certification of the work shall accompany the assessment document and to the test report referred to in the previous paragraph.

4. The approval of the record of the works by the organ of the granting authority shall imply the authorization for the opening of the works to the public use, starting from that moment the period of guarantee of the work when there is executed by third parties other than the concessionaire, as well as the stage of exploitation.

CHAPTER III

Rights and obligations of the concessionaire and prerogatives of the grantor administration

Section 1. First dealership rights and obligations

Article 242. Rights of the concessionaire.

Dealers will have the following rights:

(a) The right to exploit the public works and to receive the economic remuneration provided for in the contract during the time of the concession.

b) The right to maintain the economic balance of the concession, in the form and with the extension provided for in Article 248 of this law.

c) The right to use the public domain assets of the grantor administration necessary for the construction, modification, conservation and exploitation of the public works. This right shall include the right to use, exclusively for the construction of the work, the waters which may be used or the materials which appear during its execution, subject to the authorization of the competent authority, in each case, for the management of the corresponding public domain.

(d) The right to obtain from the Administration the processing of the procedures for the forced expropriation, the imposition of easements and administrative evictions that are necessary for the construction, modification and exploitation of the public works, as well as the realization of how many actions are necessary to make the exercise of the rights of the concessionaire viable.

The expropriated assets and rights that are affected by the concession will be incorporated into the public domain.

e) The right to grant the concession in accordance with the provisions of Article 114 of this Law and to mortgage it under the conditions laid down in this law, subject to administrative authorization, in both cases, of the procurement.

(f) The right to securitize your credit rights, as provided for in Article 254 of this Law.

g) Any others that are recognized by this or other laws or by the specifications.

Article 243. Obligations of the concessionaire.

It will be general dealer obligations:

a) Run the works according to the provisions of the contract.

b) Explain the public work, assuming the economic risk of its management with the continuity and in the terms established in the contract or ordered later by the contracting authority.

c) Admit the use of the public works by any user, under the conditions which have been established in accordance with the principles of equality, universality and non-discrimination, by means of the payment of the corresponding rate.

d) To take care of the good order and the quality of the public works, and of its use, being able to dictate the appropriate instructions, without prejudice to the police powers that correspond to the contracting authority.

e) To indemnify any damages caused to third parties by reason of the execution of the works or their exploitation, when they are imputable in accordance with Article 97 of this law.

f) Protect the public domain that is linked to the concession, in particular, preserving the ecological and environmental values of the concession.

g) Other provisions in this or other law or in the specification of particular administrative clauses.

Article 244. Use and conservation of public works.

1. The concessionaire shall take care of the proper application of the rules on the use, policing and conservation of public works.

2. The staff responsible for the operation of the public works, in the absence of officials of the authority, may take the necessary measures in order to use the public works, making, where appropriate, the relevant complaints. For these purposes, they shall serve as a means of proof obtained by the duly accredited dealer's staff and with the means previously approved by the competent authority, as well as any other admitted in law.

3. The concessionaire may prevent the use of the public works from those users who do not pay the corresponding fee, without prejudice to what is established in the relevant sectoral legislation in this respect.

4. The concessionaire must maintain the public works in accordance with what, at every moment and according to the progress of the science, has the technical, environmental, accessibility and elimination of barriers and safety regulations of the users that is applicable.

5. The Administration may include in the specifications mechanisms to measure the quality of the service offered by the concessionaire, and to grant economic benefits or penalties to the concessionaire.

Section 2. Special Economic-Financial Regime of Concession

Article 245. Public contributions to the construction of the work.

1. Public administrations may contribute to the financing of the work by means of contributions to be made during the execution phase of the works, as provided for in Article 236 of this Law, after the completion of the works, or at the end of the the amount shall be fixed in the corresponding specifications or by the tenderers in their tenders where it is laid down in those documents. In the last two cases, the rules on contracts for works under the full payment method shall apply, except for the possibility of the payment of the credit.

2. The public contributions referred to in the preceding paragraph may consist of non-cash contributions from the contracting authority or any other administration with which there is an agreement to that effect, in accordance with the assessment of the which is contained in the specification of particular administrative clauses.

The real estate to be delivered to the concessionaire will be integrated into the estate affected by the concession, destined for the intended use in the project of the work, and will revert to the Administration at the time of its extinction, In any event, the provisions of the urban or sectoral planning plans affecting them shall be respected.

Article 246. Remuneration for the use of the work.

1. The concessionaire shall be entitled to receive remuneration for the use of the work in the form provided for in the specification of particular administrative clauses and in accordance with the provisions of this Article.

2. The fees paid by users for the use of public works shall be set by the contracting authority in the award agreement. The rates will be maximum and the dealers will be able to apply lower fares when they see fit.

3. The fees shall be reviewed in accordance with the procedure laid down in the specification of particular administrative clauses.

In accordance with Article 233.1 (d) of this law, the economic-financial plan of the concession shall establish the impact on the rates of the returns on the demand for the use of the work and, where it exists, the benefits derived from the exploitation of the commercial area, where they do not reach or when they exceed, respectively, the minimum and maximum levels considered in the offer.

4. The remuneration for the use of the work may be paid by the Administration taking into account its use and in the form provided for in the specification of particular administrative clauses.

5. The concessionaire shall also be paid with the proceeds from the operation of the commercial area linked to the concession, in the case of such a concession, as laid down in the specification of particular administrative clauses.

6. The concessionaire must be able to separate the revenue from the public contributions and those from the fees paid by the users of the work and, where appropriate, those from the operation of the area. commercial.

Article 247. Public contributions to the exploitation of the work.

Public administrations may provide the concessionaire with the following contributions in order to ensure the economic viability of the operation of the work:

(a) Price grants, reintegrable advances, participative loans, subordinated or otherwise, approved by the contracting authority to be contributed from the start of the exploitation of the work, or in the (a) the duration of the period of the award of the concession, the amount of which shall be deemed to be necessary. The repayment of the loans and the payment of interest accrued on their case shall be in accordance with the terms provided for in the concession.

(b) Aid in exceptional cases where, for reasons of public interest, it is advisable to promote the use of public works before their exploitation reaches the minimum threshold for profitability.

Section 3. Economic Balance of Contract

Article 248. Maintenance of the economic balance of the contract.

1. The contract for the award of public works must maintain its economic equilibrium in the terms which were considered for its award, taking into account the general interest and the interest of the concessionaire, in accordance with the provisions of the next section.

2. The administration shall restore the economic balance of the contract, to the benefit of the relevant party, in the following cases:

(a) When the Administration modifies, for reasons of public interest, the operating conditions of the work.

b) When causes of force majeure or actions of the Administration will directly determine the substantial breakdown of the economy of the concession. For these purposes, force majeure shall be understood as those listed in Article 144 of this Law.

c) When the assumptions are made that are set out in the contract itself for review, as provided for in Articles 230.1.e) and 233.1.d) of this law.

3. In the cases provided for in the preceding paragraph, the restoration of the economic equilibrium of the contract shall be carried out by means of the measures taken in each case. These measures may consist in the modification of the tariffs established by the use of the work, the extension or reduction of the concession period, within the limits laid down in Article 263, and, in general, in any modification of the the economic content clauses included in the contract. In the case of force majeure provided for in paragraph 2 (b), the granting authority shall ensure the minimum returns agreed in the contract provided that it does not prevent the completion of the works or the continuity of its work. exploitation.

Section 4. ª Prerogatives and Administration Rights

Article 249. Prerogatives and rights of the Administration.

1. Within the limits and subject to the requirements and with the effects indicated in this law, the contracting authority or, where appropriate, the body to be determined in the specific legislation, shall have the following prerogatives and rights:

a) Interpret contracts and resolve doubts that offer their compliance.

b) Modify the contracts for duly justified reasons of public interest.

c) Reset the economic balance of the concession in the public interest, in the form and with the extension provided for in Article 248 of this law.

d) Agree to the resolution of the contracts in the cases and under the conditions set out in Articles 264 and 265 of this Law.

e) Establish, where appropriate, the maximum rates for the use of the public works.

(f) To monitor and monitor compliance with the obligations of the concessionaire, to which effect it may inspect the service, its works, facilities and premises, as well as the documentation, related to the subject matter of the concession.

g) Assume the exploitation of the public works in the assumptions in which the granting of the concession occurs.

h) Impose the relevant penalty to the concessionaire for reasons of the defaults in which it incurs.

i) Exercise the role of police in the use and exploitation of public works in terms of specific sectoral legislation.

j) Impose on a temporary basis the conditions of use of the public works that are necessary to solve exceptional situations of general interest, paying the compensation that is appropriate.

k) Any other rights recognized in this or other laws.

2. The exercise of the administrative prerogatives provided for in this Article shall be in accordance with the provisions of this law and the specific legislation resulting from it.

In particular, the opinion of the Council of State or equivalent advisory body of the respective autonomous community in cases of interpretation, amendment, nullity and resolution shall be required when opposing the part of the concessionaire, in the modifications agreed at the execution stage of the works which may result in the termination of the contract in accordance with Article 240.2 of this law and in those cases provided for in the specific legislation.

Article 250. Modification of the public works.

1. The contracting authority may agree, where the public interest so requires, the modification or extension of the public works, as well as the carrying out of additional works directly related to the subject matter of the concession during the period of validity. of the latter, where appropriate, the revision of the economic-financial plan in order to accommodate the new circumstances.

2. Any modification affecting the economic balance of the concession shall be governed by the provisions of Article 248 of this Law.

3. Amendments which, due to their physical and economic characteristics, permit their independent exploitation, shall be subject to a new invitation to tender for their construction and operation.

Article 251. Abduction of the concession.

1. The contracting authority may, after hearing the concessionaire, agree to the seizure of the concession in cases where the concessionaire is temporarily unable to deal with the exploitation of the public works by reason of serious social damage. (a) to the extent that it is not in breach of Article 3 (1) of the Treaty; The agreement of the contracting authority shall be notified to the concessionaire and if the dealer does not correct the deficiency within the time limit set for it, the kidnapping shall be carried out. The abduction may also be agreed upon in the other cases referred to in this law with the intended effects.

2. The contracting authority shall be responsible for the direct exploitation of the public works and the perception of the established consideration, and may use the same personnel and material of the concessionaire. The contracting authority shall designate one or more interventors which shall completely or partially replace the management staff of the concessionaire. The holding of the public works object of kidnapping shall be carried out on behalf and at the risk of the concessionaire, to whom it shall be returned, at the end of that one, with the balance resulting after satisfying all the expenses, including the fees of the (a) the amount of penalties imposed, if any, and deduct.

3. The abduction shall be of a temporary nature and its duration shall be determined by the contracting authority without exceeding three years, including any possible extensions. The contracting authority shall, on its own initiative or at the request of the concessionaire, cease the abduction where it has been established that the reasons for which it has been lost and the concession holder are in a position to continue normal exploitation of the public works. After the date set for the abduction without the concessionaire having guaranteed full ownership of its obligations, the contracting authority shall decide on the concession contract.

Article 252. Penalties for non-compliance of the concessionaire.

1. The specifications of individual administrative clauses shall establish a catalogue of breaches of the obligations of the concessionaire, distinguishing between those of a minor and serious nature. The total or partial non-compliance by the concessionaire of the prohibitions laid down in this law, the failure to act in accordance with it and, in particular, the failure to comply with the time limits, must be considered as punishable. for the execution of the works, the negligence in the performance of their duties of use, police and conservation of the public works, the unjustified interruption total or partial of their use, and the charging to the user of quantities superior to the legally authorized.

2. The contracting authority may impose penalties of an economic nature, which shall be laid down in the documents in proportion to the type of non-compliance and the economic importance of the holding. The maximum limit for penalties to be imposed may not exceed 10% of the total budget of the work during its construction phase. If the concession is in operation, the maximum limit of the annual penalties may not exceed 20% of the income obtained from the exploitation of the public works during the previous year.

3. Serious non-compliances shall also give rise to the resolution of the concession in the cases provided for in the relevant documents.

4. In addition to the assumptions provided for in this law, the documents will establish the serious non-compliances which may result in the temporary sequestration of the concession, irrespective of the penalties which in each case come due to the failure.

5. During the execution phase of the work, the system of penalties to be imposed on the concessionaire shall be that laid down in Article 95 of this Law.

6. Irrespective of the penalty scheme provided for in the contract, the administration may also impose periodic penalty payments on the concessionaire when it persists in the failure to comply with its obligations, provided that it has been previously requested and not had complied with them within the time limit. In the absence of determination under the specific legislation, the daily amount of the fine shall be EUR 3,000.

CHAPTER IV

Private financing

Section 1. Issue of title by the concessionaire

Article 253. Issuance of bonds and other securities.

1. The concessionaire may appeal to the credit on the capital market, both external and internal, by issuing all kinds of bonds, bonds or other similar securities admitted in law.

2. Without prejudice to the other provisions of this Chapter, securities may not be issued with a total or partial repayment period ending at a later date after the end of the concession.

3. Emissions of obligations may be subject to the endorsement of the State and its public bodies, which shall be granted in accordance with the requirements of the budgetary rules. The granting of the endorsement by the autonomous communities, local entities, their respective public bodies and other subjects subject to this law shall be granted in accordance with the provisions of their specific regulations.

4. The issuance of the bonds, bonds or other securities referred to shall be communicated to the contracting authority within one month from the date each issue is made.

5. The emission of securities regulated in this article and the following will result in the application of the provisions of the Law 24/1988, of July 28, of the Stock Market.

6. If the issue has been registered with the National Securities Market Commission and the financial risk corresponding to the securities has been positively assessed by a qualifying entity recognised by that supervisory entity, it shall not be the limit of the amount provided for in Article 282.1 of the Companies Act and in the second paragraph of Article 1 of Law 211/1964 of 24 December 1964 on the regulation of the issuance of obligations by companies which do not adopted the form of anonymous persons, associations or other legal persons and the formation of the trade union obligationists.

Article 254. Incorporation into negotiable securities of the credit rights of the concessionaire.

1. Securities may be issued which represent a participation in one or more of the credit rights in favour of the concessionaire consisting of the right to charge the fees, the income which it may obtain for the exploitation of the items (a) the granting of the grant, as well as those corresponding to the contributions which, if any, the Administration is required to make. The transfer of these rights shall be formalised in public deed which, in the event of the transfer of the contributions to be made by the Administration, shall be notified to the contracting authority without prejudice to the provisions of the fifth subparagraph of This section.

The securities referred to above shall be represented in securities or in notes, one or more issues may be issued and may affect credit rights provided for one or more financial years. different.

Both the shares and directly the credit rights referred to in the first subparagraph of this paragraph may be incorporated into asset-backed securities which shall be governed by the specific rules applicable to them. corresponds.

For the subscription and holding of these securities which is not limited to institutional or professional investors, a marginal note will be left in the registration of the corresponding concession. In addition, the characteristics of the emissions shall be recorded in the annual reports of the companies making them.

The issuance of these securities will require prior administrative authorization from the contracting authority, the grant of which may be refused only when the good end of the concession or other relevant public interest reason justify.

2. The appropriations incorporated in the securities referred to in the preceding paragraph shall be separated in the event of bankruptcy of the concessionaire and the holders of the securities shall take the same place in the ranking as the mortgage creditor. with respect to the credits incorporated.

3. Provided that they have previously designated a natural or legal person acting as the sole representative to the Administration for the sole purposes provided for in this paragraph, the security holders referred to in paragraph 1 of this Article may exercise the powers conferred on the mortgage creditor in Article 256. If, in addition, the operations referred to in paragraph 1 have expressly provided for the satisfaction of the rights of the holders before the time of the concession period, they may exercise the powers referred to in paragraph 3. of that Article 256 from the expiration of the securities.

4. Where the concession is due to the concessionaire without the creditors having obtained the reimbursement corresponding to their securities, the granting authority may choose one of the following actions:

(a) Unless the causes of extinction are those provided for in Article 264.b), with the exception of the suspension of payments, agree to the abduction of the concession as provided for in Article 251 of this law for the sole purpose to satisfy the rights of the creditors without the concessionaire being able to receive any income.

b) Resolve the concession, agreeing with the creditor's representative the amount of the debt and the conditions under which it will be amortized. In the absence of agreement, the Administration shall be released with the making available to the creditors of the minor of the following amounts:

The amount of compensation to be awarded to the concessionaire by application of the provisions of Article 266 of this Law.

The difference between the nominal value of the issue and the amounts received up to the time of the granting of the concession in respect of both interest and partial write-downs.

5. If the dealer and the creditors are not liable for a decision, the administration may choose to act in accordance with the provisions of subparagraph (a) of the previous paragraph or to act as a result of the decision. to settle the concession by agreeing with the creditors ' representative on the amount of the debt and the conditions under which it is to be amortised. In the absence of an agreement, the Administration shall be released with the making available of the difference between the nominal value of its investment and the amounts received up to the time of the granting of the concession in respect of both interest and interest. partial write-downs.

6. The right to tender for a new concession shall always remain safe after the previous one has been settled.

7. Applications concerning the administrative authorisations provided for in this Article shall be decided by the competent body within one month and shall be deemed to be rejected if it does not resolve and notify within that time limit.

Section 2. Concession Mortgage

Article 255. Subject of the concession mortgage.

1. Public works concessions with the goods and rights that they have incorporated shall be mortgageable in accordance with the provisions of the mortgage legislation, subject to the authorization of the contracting authority.

The mortgage of public works concessions will not be allowed in the guarantee of debts that do not relate to the corresponding concession.

2. Applications relating to the administrative authorisations provided for in this Article and the following shall be settled by the competent body within one month and shall be deemed to be rejected if it does not resolve and notify within that period.

Article 256. Mortgage creditor rights.

1. Where the value of the mortgaged concession is seriously impaired by reason attributable to the concessionaire, the mortgage creditor may request the contracting authority to make a statement on the actual existence of such deterioration. If it is confirmed, it may also request the Administration, after hearing the concessionaire, to order the dealer to do or not to do as necessary to prevent or remedy the damage, without prejudice to the possible exercise of the action of devastation. provided for in Article 117 of the Mortgage Law. However, where the administrative action provided for in this paragraph is exercised, the mortgage creditor shall be deemed to waive the action provided for in Article 117 of the Mortgage Act.

2. Where the decision of the concession for failure to comply with any of the concessionaire's obligations has taken place, the Administration shall, before resolving, give an audience to the mortgage creditor in case it offers subrogation in its performance and the Administration will consider such an offer compatible with the good end of the concession.

3. If the guaranteed obligation has not been fully or partially satisfied at the time of its expiry, before promoting the relevant enforcement procedure, the mortgage creditor may exercise the following powers provided that it is would have been provided for in the corresponding mortgage constitution writing:

(a) Request from the Administration that, after hearing the concessionaire, arrange for the repayment of the debt to be a part of the collection and of the amounts which, if any, the Administration had to make the dealer effective. To this end, the creditor may, on behalf of and at the risk of the creditor, designate a financial controller to check the income thus obtained and to take charge of the part which has been indicated, which may not exceed the percentage or amount previously held determine.

(b) If there are good assets to do so, request from the granting authority that, after hearing the concessionaire, grant the holding for a certain period of time of all or part of the zones complementary to commercial exploitation. In the event that these areas are being operated by a third party under a legal/private relationship with the concessionaire, the measure referred to in this paragraph must be notified to that third party with the indication that it is required to make payments to the mortgage creditor that he/she should make to the concessionaire.

Article 257. Foreclosure.

1. The successful tenderer in the foreclosure proceedings shall be subrogated to the position of the concessionaire, subject to administrative authorisation, in the terms set out in the following paragraph.

2. Anyone wishing to take part in the foreclosure proceedings as a bidder or a successful tenderer, including the mortgage creditor himself, if the sectoral legislation does not prevent him, must inform the contracting authority to obtain the appropriate administrative authorisation, which must be notified to the person concerned within the maximum period of 15 days, without which he is not permitted in the proceedings. The authorization shall be regulated and shall be granted provided that the petitioner complies with the requirements of the concessionaire. If the construction phase has been completed or is not part of the subject matter of the concession, only the requirements necessary to carry out the operation of the work shall be required.

3. If the auction is deserted or no interested party is authorised by the contracting authority to participate in the foreclosure proceedings, the granting authority may opt for any of the following actions in the Of course, the authorised mortgage creditor, if applicable, to be a dealer does not opt for the exercise of the right conferred on him by Article 671 of the Law on Civil Procedure:

(a) Agree to the abduction of the concession as provided for in Article 251 of this Law without the concessionaire being able to receive any income. A hearing will be given to the mortgage creditor to offer the possibility of proposing a new concessionaire. If the proposal does not occur or the proposed candidate does not meet the requirements required in accordance with the above paragraph, the same concession shall be issued in the shortest possible time.

b) Resolve the concession and, in agreement with the mortgage creditors, fix the amount of the debt and the conditions under which it must be amortised. In the absence of agreement, the Administration shall be released with the making available to the creditors of the amount of the compensation corresponding to the concessionaire in accordance with the provisions of Article 266 of this Law.

Article 258. Rights of holders of registered or entered charges on the concession for the case of concessional resolution.

1. When the grant resolution procedure and there are rights holders or charges entered or recorded in the Land Registry on the concession, the following rules shall be observed:

(a) The Administration, starting the procedure, shall request for incorporation into the file certification of the Registry of the Property, to the object that all the holders of such loads and rights can be heard.

(b) The registrar shall, at the time of issue of the certification referred to in the preceding paragraph, extend a note to the extent of the registration of the concession on the initiation of the resolution procedure.

c) To cancel the seats practiced in favor of the holders of the said charges and rights, must mediate a firm administrative decision declaring the resolution of the concession and the previous deposit at the disposal of the the holders of the quantities and any allowances to be paid by the Administration to the concessionaire as provided for in Article 266.

2. Without prejudice to the provisions of the foregoing Article, in the event that the auction is deserted, where the decision to grant the concession is attributable to the concessionaire, the holders of the rights and charges referred to in the The preceding paragraph may exercise, in its order, the right to subrogate itself in the legal position of the concessionaire, provided that, in order to meet the requirements necessary for this purpose, they were previously authorized by the contracting authority.

Section 3. Other sources of funding

Article 259. Participatory appropriations.

1. Participative appropriations for the financing of the construction and operation, or only the holding, of the public works to be granted are allowed. In such cases the participation of the creditor shall be on the revenue of the concessionaire.

2. The concessionaire may repay the borrowed capital in advance in the agreed terms.

3. Exceptionally, public administrations will be able to contribute to the financing of the work through the provision of participatory credits. In such cases, and unless otherwise expressly provided, the concessionaire may not repay the borrowed capital in advance, unless the early repayment implies the payment by the concessionaire of the net present value of the profits expected according to the revised economic-financial plan and approved by the competent authority of the Administration at the time of the return of the capital.

4. The procurement of such claims shall be communicated to the contracting authority within a maximum of one month from the date on which each of them was granted.

Section 4

Article 260. Competent court order.

The knowledge of the contentious questions raised by application of the precepts contained in this chapter will be the subject of the civil court order, except for the performance of the obligations and administrative powers which, in accordance with the provisions of those provisions, are attributed to the granting authority and in which the judicial-administrative judicial order shall be competent.

CHAPTER V

Extinction of concessions

Article 261. Modes of extinction.

1. Public works concessions shall be extinguished by compliance or by resolution.

2. The award shall be extinguished by the public works granted, the complementary areas annexed and the goods and facilities included in the zones of commercial exploitation if any, in the terms regulated in the articles next.

Article 262. Extinction of the concession in the course of the period.

1. The concession shall be deemed to be extinguished by compliance with the time limit initially laid down or, where appropriate, the period resulting from the extensions or reductions agreed.

2. The concessionaire shall be obliged to give to the granting authority, in good condition of conservation and use, of the works included in the concession, as well as of the goods and facilities necessary for its exploitation according to the established in the contract, all of which shall be reflected in the minutes of receipt.

3. The goods and facilities included in the commercial operating zone, if any, shall also be delivered to the administration under the same conditions and with the same formalities as provided for in the preceding paragraph.

4. All contracts relating to the concession and exploitation of their commercial zones shall also be extinguished.

Article 263. Deadline for the concessions.

1. Concessions for the construction and exploitation of public works shall be granted for the period agreed in the specification of particular administrative clauses, which may not exceed 40 years.

2. Concessions for the exploitation of public works shall be granted for the period agreed in the specification of particular administrative clauses, taking into account the nature of the work and the investment to be made, with the explicit justification of the establishment of a period of more than 15 years, without exceeding, in any event, 20 years.

3. The time limits laid down in the specifications may be extended in an express manner up to the limit laid down respectively in the preceding and reduced paragraphs in accordance with the provisions of this law.

4. The time limits laid down in the specifications may be extended beyond the limits laid down, up to the age of 60 and 25, respectively, in order to restore the economic equilibrium of the contract or, exceptionally, to to satisfy the rights of the creditors in the case where the credit rights of the concessionaire have been the subject of securitisation.

Article 264. Causes of resolution.

The following are causes for the resolution of the public works concession contract:

(a) The death or incapacity of the individual concessionaire or the extinction of the legal personality of the concessionaire.

b) The declaration of bankruptcy, suspension of payments, tender of creditors or failed insolvent in any proceedings or the withdrawal and withdrawal agreement.

(c) The declared foreclosure of the mortgage or the impossibility of initiating the foreclosure procedure for lack of authorized persons authorized to do so in the cases in which it proceeded, in accordance with the provisions of the this law.

d) The mutual agreement between the grantor and the concessionaire.

e) Abduction of the concession for a period exceeding the maximum set of time without the contractor having guaranteed full ownership of its obligations.

(f) The delay of more than six months by the contracting authority in the delivery to the dealer of the consideration, of the grounds or of the auxiliary means to which the contract was made.

g) The rescue of the exploitation of the public works by the contracting authority. The unilateral declaration of the contracting authority, which is discretionally adopted, shall be understood as a rescue by the end of the concession, notwithstanding the good management of its holder.

h) The abolition of the exploitation of public works for reasons of public interest.

i) The impossibility of the exploitation of the public works as a result of agreements adopted by the granting authority after the contract.

j) Abandonment, unilateral waiver, as well as non-compliance by the dealership with its essential contractual obligations.

k) Any other causes expressly referred to in this or other law or in the contract.

Article 265. Application of the causes of resolution.

1. The decision of the contract shall be agreed by the contracting authority, either on its own initiative or at the request of the concessionaire, by means of the procedure to be applied in accordance with the law of contracts.

2. The reasons for the decision referred to in paragraphs (b)-except for the suspension of payments-, (e), (g), (h) and (i) of the previous Article shall always give rise to the termination of the contract. In the other cases of termination of the contract, the right to exercise the contract shall be of a powers for that party to which the circumstance giving rise to that party is not attributable.

3. Where the cause of termination is the death or inability of the individual contractor, the Administration may agree to the continuation of the contract with its heirs or successors, provided that they comply or are committed to comply, in the the time limit set for the purpose, the requirements required from the initial concessionaire.

4. The resolution by mutual agreement may only take place if the concession is not subject to an agreed abduction for serious infringement of the concession holder and whenever reasons of public interest make the continuation of the concession unnecessary or inconvenient contract.

5. In the case of mergers of undertakings in which the concessionary company participates, the prior administrative authorisation shall be required in order to enable the acquiring or resulting entity of the merger to continue the concession and to be subrogated to all the rights and obligations arising from that.

6. In the case of a division, contribution or transfer of undertakings, the contract with the resulting entity may be continued only if it is expressly authorised by the contracting authority in the light of the requirements. established for the award of the concession according to the degree of development of the concessional business at the time of such circumstances.

Article 266. Effects of the resolution.

1. In the case of a decision, the contracting authority shall pay the concessionaire the amount of the investments made by reason of the expropriation of land, the execution of construction works and the purchase of goods that are necessary for the exploitation of the concession. For this purpose, account will be taken of the degree of depreciation in terms of the time it will take for the term of the concession and the financial and economic plan. The resulting amount shall be fixed within six months, unless otherwise specified in the specification of particular administrative clauses. If the concessionaire has counted among its resources with third-party financing, only the excess will be paid after it has met the obligations contracted with those.

2. In the case of paragraph (f) of Article 264, the concessionaire may opt for the termination of the contract, with the effects set out in the following paragraph, or for requiring the payment of the legal interest of the amounts due or the economic values agreed, as soon as the deadline for compliance with the consideration or delivery of the agreed goods is due.

3. In the case of paragraphs (g), (h) and (i) of Article 264, and without prejudice to the provisions of paragraph 1 of this Article, the granting authority shall indemnify the concessionaire for the damage and damage to which it is liable. In order to determine the amount of the allowance, account shall be taken of the future benefits which the concessionaire shall cease to receive, taking into account the operating results in the last five years where possible, and the loss of the value of the works and installations which are not to be delivered to the latter, considering their degree of depreciation.

4. Where the contract is settled for account attributable to the concessionaire, the security shall be seized and shall, in addition, indemnify the contracting authority from the damage and damage caused in excess of the amount of the security seized.

5. The contracting authority may also agree, as a result of the decision to grant, to resolve the contracts awarded by the concessionaire for the use of the complementary areas of commercial exploitation, paying the compensation which in his case corresponds. This allowance shall be paid by the concessionaire when the decision is taken as a result of the cause of the compensation. Where the decision of the said contracts is not agreed, the holders of the rights of exploitation shall continue to exercise them, being obliged to the body of the treatment in the same terms as they were against the Except that the review of the relevant contract will be reached by mutual agreement.

6. Where the contract is settled by mutual agreement, the rights of the parties shall be accommodated in accordance with the provisions of the agreement. "

Additional disposition first. Planning.

Public administrations may approve sectoral plans for works or other types of legally established plans that include the works to be carried out, which will be required when required by general legislation or by law. specific rules for each class of works. In this case, the plans may include the works likely to be the subject of the concession contract.

Additional provision second. Collaboration and coordination between public administrations.

1. The General Administration of the State, the Administrations of the Autonomous Communities and the local authorities have the duties of mutual information and cooperation and mutual cooperation in the exercise of their actions of planning and construction of public works, as established by the current system.

If the collaboration procedures are ineffective, and when justified by the direct and significant impact on the general economic activity, the State, in the exercise of its exclusive competence on the bases and coordination of the general planning of economic activity, may coordinate the public works plans of the autonomous communities with the plans of public works of general interest.

2. The State Administration must collaborate with the administrations of the Autonomous Communities and local authorities through the mechanisms of coordination and cooperation legally established, in order to articulate the planning and construction of public works of general interest with plans for spatial and urban planning.

In the absence of agreement between the public administrations, and without prejudice to the provisions of environmental legislation, the plans and projects of public works of state competence will prevail over any instrument of planning or spatial planning or urban planning as regards exclusive state powers, in which case the autonomous communities and local authorities must necessarily incorporate into their respective instruments of ordering the necessary rectifications to accommodate their determinations to those.

3. The plans or general instruments of territorial or urban planning shall describe the territorial spaces necessary for the various public works of general interest of the State as general systems and shall be classified in accordance with their nature, without prejudice to the provisions of Article 9.1. of Law 6/1998 of 13 April on the Conditions of Soil and Valorations.

4. The General Administration of the State shall, in the exercise of its powers, issue a report on the instruction of the procedures for the approval, modification or revision of the territorial and urban planning instruments which may affect the exercise of the powers of the State. These reports shall be binding in respect of the preservation of the powers of the State, and shall be evacuated, after, where appropriate, any attempt to find a negotiated solution within the maximum period of two months, which shall be deemed to have been issued on a favourable basis and may be continued with the processing of the approval procedure, unless it affects the State-owned domain or public service. In the absence of a request for a mandatory report, as well as in the case of disagreement issued by the competent body on the grounds of the matter or in the cases of silence referred to in which the presumption of the favourable nature of the report does not operate, the corresponding instrument for territorial or urban planning may be approved for the purposes of the State competences.

Additional provision third. Construction of public works of general interest.

1. Public works projects of general interest shall be referred to the competent urban administration, in order to report on the adaptation of these projects to the urban planning that is applicable. This report shall be issued within one month, after which the report shall be deemed to be in a favourable light.

2. In the event that such works are to be constructed on land not reserved by urban planning, and provided that it is not possible to resolve any discrepancies by agreement, in accordance with the rules of application, the State decision on the implementation of the project shall prevail over urban planning, the content of which shall accommodate the determinations of the project.

3. The construction, modification and extension of public works of general interest shall not be subject to a licence or to any other act of municipal preventive control, provided that the provisions of paragraph 1 of this provision are followed.

4. The suspension of the execution of public works of general interest shall not be carried out by the urban planning bodies when they are carried out in compliance with the plans and projects of works approved by the bodies responsible for the procedure. (i) established or is concerned with emergency works.

Additional provision fourth. Environmental impact assessment.

Public works to be constructed by concession contract shall be subject to the environmental impact assessment procedure in the cases established in the environmental legislation.

Additional provision fifth. Report of the Ministry of Defense.

Prior to the approval of the feasibility studies provided for the contracts for the concession of public works and which have an impact on areas declared of interest to the national defence or on land, buildings and installations, including their security zones, linked to the purposes of national defence, shall be requested to be reported by the Ministry of Defence in respect of such incident. The report shall be binding and must be evacuated within two months, if it is not, if it is not issued, an unfavourable understanding of the national defence.

Additional provision sixth. Public Utility Statement.

1. The declaration of public utility of works covered by a contract for the award of public works shall be in accordance with the provisions of the relevant specific legislation. The approval of the project of the works and the consequent agreement of the award of the concession contract will entail the necessity of the occupation of the goods and acquisition of rights necessary for its execution to the ends of the forced expropriation and temporary occupation of the goods and rights concerned, in respect of which the concessionaire will assume the rights and obligations of the beneficiary.

2. In the field of the General Administration of the State the recognition of the public utility of each specific work shall correspond to the holder of the department responsible for the matter.

Additional provision seventh. Procedure and powers in concessions for public works of state competence.

1. In the cases referred to in Articles 130 to 134 and 226, or where the financing of a contract provides for any form of State aid or contribution, or in the amendment of those contracts, the approval by the contracting authority the procurement file provided for in Article 231.1 shall require the prior report of the Ministry of Finance.

2. The powers conferred on the contracting authority in Title V of book II of the Law on Public Administration Contracts shall be understood to have always been attributed to the holder of the department if, prior to its entry into force, the Council of Ministers is responsible for the provisions of a sectoral rule. However, the decisions which the Minister takes as a result of the assumption of these new powers will require the prior authorisation of the Council of Ministers.

Additional disposition octave. Modification of the Law of Highways.

The following articles of Law 8/1972, of 10 May, of construction, conservation and exploitation of highways under concession, are amended as follows:

One. Article 2 is amended as follows:

" The concessions referred to in the previous article shall be governed by the provisions of the contract for the concession of public works in the Law on Contracts of Public Administrations in the terms provided for in its Article 7, and as provided for in this law. "

Two. Article 23 is amended as follows:

" 1. In both the construction and the holding phase, the Administration may impose penalties on the concessionaire for the failure to comply with his contractual obligations and for the reason that he is responsible for the latter. Without prejudice to the fact that such obligations are more precisely detailed in the relevant specification, the total or partial non-compliance with the prohibitions laid down in this law may be considered as penalizable, the omission of actions which were binding in accordance with it, and in particular the failure to comply with the provisions contained in this law as well as in its regulatory development with regard to the limitations of the social object of the concessionary companies. In addition, failure to comply with deadlines, negligence in the preservation of the elements of the motorway, the deficiencies in its signalling and the completion of the traffic, the unjustified or partial interruption of the traffic, the charging the user with amounts in excess of those legally authorised, as well as any other non-compliance with obligations contained in the documents or imposed by a competent administrative authority.

2. The maximum limit for penalties to be imposed may not exceed 10% of the total budget of the work during its construction phase. If the concession is in operation, the maximum limit of the annual penalties may not exceed 20% of the revenue from the operation of the motorway during the previous year.

3. Irrespective of the penalty scheme provided for in the contract, the administration may also impose periodic penalty payments on the concessionaire when it persists in the failure to comply with its obligations, provided that it has been previously requested and not had complied with them within the time limit. The daily amount of the fine shall be EUR 6,000. '

Three. Article 36 is amended as follows:

" 1. The Government Delegate in the National Highway Dealership Companies is the coordinating, executive and relationship organ of the General Administration of the State with the aforementioned companies, corresponding to the following: functions:

(a) Coordinate the actions agreed by the Administration in relation to the concession contracts, being able to obtain the effect of the competent bodies as many reports or data as it deems appropriate.

b) To monitor and monitor compliance by the concessionaire of its obligations during the exploitation phase of the concession and to ensure compliance with the relevant economic and financial plan.

(c) Receive, process and resolve, where appropriate, the written submissions of the concessionaires to the Administration and inform the contracting authority of any incidents arising in the development of the contract.

(d) Any other that is attributed under a legal or regulatory rule or that recognizes the contract specification or the corresponding concession award agreement.

2. In the course of his duties, the following powers are conferred on the Government Delegate:

a) Evacuate the reports required by the contracting authority and issue the appropriate certifications.

b) Propose the approval of toll rates and their revisions and authorize the systems of credits and bonuses.

(c) Propose to the contracting authority the agreements which come under the legal regime applicable to the tradable securities of the concession rights of the concessionaire and on the mortgage of the concessions.

d) Formulate proposals that proceed on the abduction and reversal of the concession or on the resolution of the contract.

(e) To agree, after hearing the concessionaire, to impose penalties and periodic penalty payments provided for in the law and in the corresponding specifications of administrative clauses.

f) Set the conditions for the use of the motorway on a temporary basis in accordance with the provisions of Article 29 of Law 25/1988, of 29 July, of Roads, in the wording given to it by the Royal Decree Law 11/2001, of 22 June.

g) Approve the contracts that the concessionaire carries out with third parties for the operation of the service areas, as well as those relating to the provision of those services necessary for the exploitation of the own Motorway.

h) To collect the data and information that you deem necessary from the concessionary companies, to check their books of accounts and to agree to the inspection of facilities and services, being able to attend, with voice and without vote, to the meetings of your board of directors.

3. The Government Delegate may exercise, by delegation of the contracting authority, any of the powers of the contracting authority, with the exception of those relating to the issue of abduction and reversion of the concession, as well as to the termination of the contract. "

Additional provision ninth. Authorization to the Government.

The government will approve technical regulations that will allow the interoperability of electronic toll collection systems without stopping the vehicle used by highway dealers.

Additional provision 10th. Amendment of Law 22/1988, of 28 July, of Costas.

The following amendments are introduced in Law 22/1988, of July 28, of Costas:

One. Article 54 is worded as follows:

" 1. By way of derogation from the foregoing Article, the total or partial exploitation of seasonal services may be granted to holders of concessions for the creation, regeneration or conditioning of beaches, in accordance with the terms laid down in this Article. the corresponding title.

2. Authorisation may also be granted for the full or partial exploitation of seasonal services on the beaches, as a consideration to the cost of the execution of a public work related to the beaches which, by their nature and characteristics, is not susceptible to economic exploitation. "

Two. Article 84 (6) is worded as follows:

" 6. Autonomous communities and local corporations shall be exempt from the payment of the occupancy fee in the concessions or authorizations granted to them, provided that they are not the subject of a profit, directly or by third parties. The assumptions provided for in Article 54 (2) of this Law shall also be exempt from payment of this fee. "

Additional provision eleventh. Hydraulic public works.

The following modifications are made to the recast text of the Water Law, approved by Royal Legislative Decree 1/2001, of July 20:

One. A new paragraph 3 is added to Article 125 with the following wording:

"Title V of book II of the Law on Public Administration Contracts shall apply in so far as it does not object to the provisions of the foregoing paragraphs of this Article."

Two. Chapter III of Title VIII is worded as follows:

" CHAPTER III

Of the concession contracts for hydraulic works

Article 133. Legal regime.

The legal system of the contract for the concession of hydraulic works will be the one established in Title V of book II of the Law on Contracts of Public Administrations, without prejudice to the peculiarities established in the The following items.

Article 134. Deadlines.

The deadlines set out in Article 263 of the Law on Public Administration Contracts shall not apply, with the following:

(a) The period of the concession for the construction and operation or only the exploitation of the hydraulic works shall be that provided for in each specification of particular administrative clauses for which the nature of the works and the investment to be made, without it being able to exceed in any case of 75 years.

(b) The time limits laid down in the specification may be extended to the limit laid down in the preceding paragraph and reduced in accordance with the provisions of Title V of book II of the Law on Contracts of Administrations. Public.

Article 135. Specifications for particular administrative conditions.

The grantor administration may include in the specifications of particular administrative clauses, in addition to the aspects provided for in Article 230 of the Law on Public Administration Contracts, the following:

(a) The obligation to the successful tenderer to incorporate into the company or entity that the communities of water users related to the work subject to the concession are constituted.

(b) The determination of the appropriate mechanisms for the recovery of the contributions that have been made, where appropriate. "

Additional disposition twelfth. Infrastructure in the energy sector.

1. They shall be governed by their specific legislation, works and installations related to the system of transport and distribution of electrical energy, telecommunications, gas and hydrocarbons.

2. Without prejudice to the provisions of the above paragraph, it shall apply to the installations of the electricity transmission system covered by Article 35 of Law 54/1997 of 27 November 1997 in the electricity sector, as well as to the installations of the basic natural gas transport network governed by Article 59 of Law 34/1998 of 7 October 1998, of the hydrocarbon sector, the authorisations of which fall within the competence of the General Administration of the State, Additional provisions second and third of this law.

3. The report referred to in paragraph 1 of the third additional provision shall be transmitted and obtained within the procedures laid down and regulated in the relevant sectoral legislation.

4. Decisions to be taken by the competent State bodies on the implementation of the facilities referred to in paragraphs 2 and 3 of this provision shall be communicated by the Ministry of Economic Affairs to the Autonomous Communities and the local authorities concerned, in order to ensure that the relevant territorial and urban plans are amended as appropriate.

Additional disposition thirteenth. Accessibility guarantee for people with disabilities and older people.

Public works to be constructed by concession contract, including the complementary areas of commercial exploitation referred to in Article 223 of the Law on Public Administration Contracts, shall be observed. the regulatory provisions that are applicable to the removal of barriers and the promotion of accessibility, in such a way as to ensure their use in terms of comfort and safety on the part of persons with disabilities and persons older people who have problems with mobility or communication.

Single repeal provision. Regulatory repeal.

As many provisions of equal or lower rank are repealed, they contradict or are incompatible with the provisions of this law, and in particular:

(a) Articles 124.4, 139 and the "30 per 100 percentage of Article 131" of the final provision of the Public Administration Contracts Act.

b) Articles 4.2; 5; 6; 7; 13; 16.1; 25.2, 25a; 26; 30; 32 and 34 of Law 8/1972, of 10 May, of construction, conservation and exploitation of motorways under concession.

(c) Articles 53 to 105 and Article 111 of the General Public Works Act of 13 April 1877.

(d) Article 5 (2) of Law 54/1997 of 27 November 1997 on the electricity sector, as regards electrical energy transport installations, as well as Article 5 (2) of Law 34/1998, 7 October, in the hydrocarbon sector, in what is applicable to the installations of the basic natural gas transport network.

Final disposition first. Title and character of the legislation.

1. This law is of general application to the General Administration of the State and to the entities governed by public law linked to or dependent on it. It shall apply to the other public administrations on the terms and with the scope referred to in the following paragraphs.

2. They constitute basic legislation issued pursuant to Article 149.1.18. of the Constitution, the precepts listed below:

(a) Articles 5.2.a), 7, 130 to 134 and 157.a) of the Law on Public Administrations Contracts in the wording given to them by paragraphs one to three of the sole article of this law.

(b) The articles contained in Title V of book II of the Law on Public Administration Contracts, except as provided for in paragraph 4 of this provision and the articles or parts thereof which are then list:

Article 223.

The period of one month for which paragraph 3 is extended for another month, paragraph 4 and the three-month time limit shall be extended to six months and the rule of silence in Article 227 (5) shall be dismissed.

The last subparagraph of paragraph 1, the period of one month which is extended for another month of paragraph 3 and Article 228 (4) and (5

.

Article 229 (3).

The last paragraph of Article 231 (1).

Article 235 (3).

The percentage of 30 percent of item 237.

Article 238 (1).

Article 245 (2).

Article 246 (5).

Article 247.

Article 251 (2) and (3).

The maximum limits for the penalties provided for in paragraph 2 and paragraphs 5 and 6 of Article 252.

Article 254 (7).

Article 255 (2).

c) The following provisions of the final part:

The additional disposition first.

The second, second, second paragraph, paragraph 1.

The fourth additional disposition.

Additional provision sixth, with the exception of the second sentence of paragraph 1, from "Approval ..." to "... of the beneficiary", and paragraph 2.

The additional eleventh disposition.

The second end disposition.

The fourth final disposition.

3. They constitute basic legislation issued pursuant to Article 149.1.13. of the Constitution, the precepts listed below:

Additional provision second, paragraph 1, second paragraph.

The ninth additional disposition.

4. The following articles are issued under the exclusive competence of the State pursuant to the provisions of Article 149.1.4., 6. ª. 8., 14. and 24. of the Constitution:

Article 246.6.

Article 253.1.

Article 254.1 and 2.

Article 255.1.

Item 256.

Article 257.

Article 258.

Article 260.

Additional provision second, paragraphs 2, and 3.

The additional third disposition.

The additional tenth disposition.

5. The additional twelfth provision is made under the provisions of Article 149.1.22. and 25. of the Constitution.

Final disposition second. Basic character of the development rules.

The rules that, in the development of this law, promulgate the General Administration of the State may be of a basic character when they constitute the necessary complement of that character with respect to the articles that have it attributed in accordance with the final provision first and thus to be pointed out in the development standard itself.

Final disposition third. Law enforcement.

This law will apply to contracts whose tender is made after their entry into force. For these purposes, it shall be understood that the invitation to tender was made on the date of the first publication of the relevant contract notice. In the case of negotiated procedures without publicity, it shall be understood that the invitation to tender has been issued from the date of referral of the invitation to the entrepreneurs to submit tenders.

Final disposition fourth. Powers of development.

The Council of Ministers is authorized to dictate the necessary provisions in the development of this law.

Final disposition fifth. Entry into force.

This law will take effect three months after its publication in the "Official State Gazette".

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this law.

Madrid, 23 May 2003.

JOHN CARLOS R.

The President of the Government,

JOSÉ MARÍA AZNAR LÓPEZ